The Smug Assumption of Reverse Discrimination: Abigail Fisher and Fisher v. University of Texas at Austin
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The Smug Assumption of Reverse Discrimination:
Abigail Fisher and Fisher v. University of Texas atAustin
R. Nicholas Rabold
-Thus itis not enough just to open the gates ofopportunity.
All our citizens must have the ability to walk through those gates.4
ABSTRACT
Many expected Fisher v. University of Texas at Austin (Fisher I), 133 S. Ct.
2411 (2013)-an appeal from the Court ofAppeals for the Fifth Circuit upholding
the University of Texas at Austin's race-conscious admissions program-to sound
the death knell for race-based affirmative action in higher education. Instead, in
remanding the case back to -the Fifth Circuit, the Supreme Court of the United
States upheld the consideration of race in college admission programs, so long as
such use could satisifr strict scrutiny. Nonetheless, Fisher I concerned academics
and practitioners with its potentially limiting language, leaving the future of race-
based aftirmative action programs uncertain. When the fifh Circuit gain held the
University of Texas at Austin's race-conscious admissions program was
constitutional, the Fisher found its way back to the Supreme Court.
Oral arguments for Fisher v. University of Texas at Austin (Fisher II), 136 S.
Ct. 2198 (2016) revived concern for the abolition of race-based affirmative action
policies in the United States. In ruling, however, the Supreme Court again upheld
the constitutionality ofrace-based affirative action programs in higher education,
this time also explicitly approving of the program used by the University of Texas
at Austin. Although the decision was hailed as a great victory for proponents of
affirmative action-and it was-this Note argues Fisher II's admittedly great
precedential value is weakened by the case's failure to confront certain legal fictions
enveloping the law of affrmative action. Specifcally, this Note aigues itis time for
the Court to disregard false equivalences between positive and negative racial
preferences, recognize the problems associated with the generalized grievances
alleged by opponents of affirmative action, and permit universities even greater
discretion to explicitly consider flexible racial quotas in their admnission programs.
I Editor-in-Chief, KENTUCKY LAW JOURNAL; J.D. Candidate, 2017, University of Kentucky
College of Law. The author would like to dedicate this piece to all victims of injustice, institutional and
otherwise. Special thanks goes to the author's parents, for their unwavering, absolute love and support.
To the Editors of the KENTUCKY LAWJoURNAL for their tireless work. To the Faculty and Staff of the
University of Kentucky College of Law for a fabulous legal education. And to the author's best friend,
George Edward Trip Carpenter III, for his enduring friendship and affection. It sure is pretty!
' Lyndon B. Johnson, President of the U.S., Commencement Address at Howard University: To
Fulfill These Rights (June 4, 1965) (transcript available at
http://www.presidency.ucsb.edu/ws/fpid=27021 [https*//perma.cc/9HTX-JN9S]).
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The Smug Assumption of Reverse Discrimination: Abigail Fisher and Fisher v. University of Texas at Austin
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